שבועות 42:2 — Soncino English Talmud

But all [cases] are the claims of others and his own admission! But [say] they disagree in Rabbah's dictum; for Rabbah said: Why did Scripture say that he who admits a portion of a claim must take an oath? Because it is a presumption that a man has not the effrontery to deny a claim in front of his creditor, for this one may have wished to deny it all, but did not deny it, because he had not the effrontery [to do so] in front of his creditor; and he really wished to admit it all, but he did not admit it all, because he tried to evade him [for the moment], thinking, ‘When I will have money, I will pay him’; so Divine Law said: Impose an oath on him, so that he may admit it all. Now R. Eliezer b. Jacob holds: No matter whether against him or against his son, he has not the effrontery; and therefore he is not a restorer of a lost object.’ But the Rabbis hold: Against him himself he has not the effrontery, but against his son he has the effrontery; and since he is not evincing any effrontery, he is ‘a restorer of a lost object’ [and exempt]. But how can you affirm the Mishnah to be in accordance with the view of R. Eliezer b. Jacob? Surely it states in the first clause: ‘YOU HAVE A HUNDRED DENARII OF MY FATHER'S IN YOUR POSSESSION.’ — ‘I HAVE OF HIS IN MY POSSESSION ONLY FIFTY DENARII’; HE IS EXEMPT, FOR HE IS ‘A RESTORER OF A LOST OBJECT’! — There, he did not say, ‘I am certain’; here, he said, ‘I am certain.’ Samuel said: ‘AGAINST A MINOR’ [means] to collect payment from the estate of a minor; ‘AGAINST THE TEMPLE’ — to collect payment from the estate of the Temple.’ — ‘Against a minor’ — to collect payment from the estate of a minor! But we have already learnt it, [viz.:] From the estate of orphans one cannot collect payment except with an oath. Why do we require [this ruling] twice? — This he teaches us, as Abaye the Elder said, for Abaye the Elder stated: Orphans which are mentioned are adults, and there is no need to say [they include] minors, whether for oath, or for [exacting payment from] the lowest class of land. — ‘AGAINST THE TEMPLE’ — to collect payment from the estate of the Temple! But we have already learnt it, [viz.:] From assigned property they cannot collect except with an oath! [For] what is the difference whether they are assigned to a layman or assigned to the Most High? — It is necessary, for I might have thought [in the case of property assigned to] a layman [an oath is necessary], because a man may make a conspiracy to defraud a layman; but in the case of the Temple [an oath is not necessary], for a man will not make a conspiracy to defraud the Temple, therefore he teaches us [that it is necessary]. But did not R. Huna say: A dying man who dedicated all his property to the Temple, and said: ‘I have a hundred denarii of So-and-so in my possession,’ he is believed, because it is a presumption that a man does not make a conspiracy to defraud the Temple. — I will tell you: that is only in the case of a dying man, for a man will not sin without benefit to himself; but in the case of a healthy man we certainly fear [for conspiracy]. MISHNAH. AND THESE ARE THE THINGS FOR WHICH NO OATH IS IMPOSED: SLAVES, BONDS, LANDS, AND DEDICATED OBJECTS. [THE LAW OF] PAYING DOUBLE, OR FOUR OR FIVE TIMES THE VALUE, DOES NOT APPLY TO THEM. AN UNPAID GUARDIAN DOES NOT TAKE AN OATH, AND A PAID GUARDIAN DOES NOT PAY, R. SIMEON SAID: FOR DEDICATED OBJECTS FOR WHICH HE IS RESPONSIBLE AN OATH IS IMPOSED; AND FOR WHICH HE IS NOT RESPONSIBLE AN OATH IS NOT IMPOSED. R. MEIR SAID: THERE ARE THINGS WHICH ARE [ATTACHED] TO LAND, BUT ARE NOT LIKE LAND. BUT THE SAGES DO NOT AGREE WITH HIM. HOW? [IF A MAN SAYS,] ‘TEN VINES LADEN WITH FRUIT I DELIVERED TO YOU.’ — AND THE OTHER SAYS: ‘THERE WERE ONLY FIVE’; R. MEIR MAKES HIM TAKE AN OATH; BUT THE SAGES SAY: ALL THAT IS ATTACHED TO LAND IS LIKE LAND. AN OATH IS IMPOSED ONLY FOR A THING [DEFINED] BY SIZE, WEIGHT, OR NUMBER. HOW? [IF A MAN SAYS,] ‘A HOUSEFUL [OF PRODUCE] I DELIVERED TO YOU,’ OR ‘A PURSEFUL [OF MONEY] I DELIVERED TO YOU’; AND THE OTHER SAYS: ‘I DO NOT KNOW; BUT WHAT YOU LEFT YOU MAY TAKE,’ HE IS EXEMPT. IF ONE SAYS: ‘[I GAVE YOU PRODUCE REACHING] UP TO THE MOULDING [ABOVE THE WINDOW],’ AND THE OTHER SAYS: ‘ONLY UP TO THE WINDOW,’ HE IS LIABLE. GEMARA. That [THE LAW OF] PAYING DOUBLE [DOES NOT APPLY] how do we know? — Our Rabbis taught: For every matter of trespass — is a generalisation; for ox, for ass, for sheep, for raiment — are specifications; for any lost thing — is another generalisation: where there is generalisation, specification, and generalisation, you may include only those things which are similar to the specification: just as the specification is clearly a thing which is movable, and intrinsically worth money, so everything which is movable and intrinsically worth money [may be included], but exclude lands, which are not movable, exclude slaves, which are likened to land, and exclude bonds which, though they are movable, are not intrinsically worth money. As for dedicated things, it is written: his neighbour. AND NOT FOUR OR FIVE TIMES THE VALUE. What is the reason? — The payment of four or five times the value, said Scripture, and not the payment of three or four times the value. AN UNPAID GUARDIAN DOES NOT TAKE AN OATH. Whence do we know this? — Our Rabbis taught:^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ

^ᵃnote:Then why does R. Eliezer say: Sometimes a man must take an oath etc.? And if an adult is claiming, why do the other Sages hold that the defendant need not take an oath, for he is ‘a restorer of a lost object’? If an adult claims, the defendant is not accounted ‘a restorer etc.’
^ᵇnote:R. Eliezer b. Jacob and the Sages disagree in a case where a minor claims (his father being dead). R. Eliezer calls it ‘his own (the defendant's) claim,’ because a minor's claim is really of no consequence, and no oath is imposed elsewhere; but here, since it is on behalf of an adult (his father), an oath is imposed, for the original ‘giving’ (of the deposit) was by a ‘man’.
^ᶜnote:Who has done him a favour by lending him the money.
^ᵈnote:But since he does deny a portion, let us believe him, for since a man has not the effrontery to deny a valid claim, and this one does deny, he must be speaking the truth; then why should he take an oath? Because, continues the Talmud, to deny a portion does not necessitate effrontery (and he may really owe the money); for he is merely trying to evade his obligation temporarily in order to gain time, fully intending to pay later when he has money; v. B.M. 3b Tosaf. For an alternative interpretation of this passage, v. B.M. (Sonc. ed.) pp. 8ff. and notes.
^ᵉnote:Therefore when the minor claims, it is as if the father is claiming, and the defendant, since he admits a half, takes an oath like any other person who admits part of a claim.
^ᶠnote:And could have denied it all, if he had wished; therefore whatever he admits is like the restoration of a lost object, and he does not take an oath.
^ᵍnote:In the first clause, the minor did not say ‘I am certain you owe my father 100 denarii,’ but ‘I think you do;’ therefore the defendant in admitting a half is exempt, for he is a ‘restorer of a lost object’.
^ʰnote:In the later clause ‘an oath is imposed for the claim of a minor’ when the minor puts forward a definite claim.
^ⁱnote:There is no inconsistency in the Mishnah. An oath is not imposed for the claim of a minor; but when the Mishnah states later that an oath is imposed for a minor and the Temple, it means that when a claim is made against the estate of a minor or the Temple (and even when documentary evidence is produced), the claimant must take an oath that it has not already been paid by the minor's father.
^ʲnote:If a man dedicated some property to the Temple treasury, and a claimant (with a document) desires to exact payment for his debt from that dedicated property, he must take an oath that it has not yet been paid.
^ᵏnote:Infra 45a.
^ˡnote:That when payment is claimed from them on their father's debt the claimant must take an oath.
^ᵐnote:Even if the orphans are adults, the claimant must still take an oath.
^ⁿnote:When the oath is taken and payment demanded, it may be exacted only from the third grade of land (if the orphans possess best, medium, and third grade; v. B.K. 7a). The law is therefore stated twice; in our Mishnah: an oath is imposed when a claim is made against the estate of an orphan who is a minor; and in the other Mishnah (infra 45a) that even when they are adults an oath must be taken in any claim against them.
^ᵒnote:Infra 45a. If the property has already been assigned (or mortgaged) to another, the creditor cannot collect his debt from that property without an oath.
^ᵖnote:That we be told the law holds good also in the case of property assigned to the Temple.
^ᵠnote:Before the creditor can collect from the property.
^ʳnote:The borrower may already have paid his debt; and now, having sold his land, he conspires with the creditor to defraud the purchaser, by saying he still owes the money, so that the creditor takes the land, and they divide it. Therefore the creditor must take an oath that the debt is still unpaid.
^ˢnote:For even in the case of the Temple a man may conspire.
^ᵗnote:And the man obtains the money without an oath.
^ᵘnote:And since he himself will derive no benefit from the 100 denarii we believe him.
^ᵛnote:In any claim concerning these the defendant does not take an oath.
^ʷnote:For stealing.
^ˣnote:Normally, an unpaid guardian takes an oath that he did not wilfully cause the loss of the deposit, and he is free from payment (v. infra 49a), but in the case of slaves etc. no oath is imposed.
^ʸnote:For loss or theft, which, normally, he would have to pay (infra 49a).
^ᶻnote:If a man vowed to bring a burnt offering, and assigned a certain animal for that purpose, and gave it into the keeping of a neighbour for a time, and on claiming it, the bailee denies having it; he must take an oath, for this will cause a loss to the depositor (who will have to offer another animal), and not to the Temple.
^ᵃᵃnote:Though the vines are fixed to the ground they are not accounted as land to exempt him from an oath, because the grapes were ripe and ready for picking, and it is for the grapes that he is claiming; v. infra 43a.
^ᵃᵇnote:Because the claim was not defined as to size, weight, or number.
^ᵃᶜnote:For the claim is defined.
^ᵃᵈnote:Ex. XXII, 8; the verse ends, he whom the judges shall condemn shall pay double unto his neighbour.
^ᵃᵉnote:Ibid., but he does not pay double in a claim by the Temple.
^ᵃᶠnote:Since the payment of double does not apply for theft, there would only be three or four times the value for killing or selling (three for a lamb and four for an ox), which Scripture does not enjoin; Ex. XXI, 37.